Wackenhut Corp. v. N.L.R.B.

• Citation: 178 F.3d 543
• Decision Date: 08 June 1999
• Docket Number: No. 98-1319,98-1319
• Parties: 161 L.R.R.M. (BNA) 2449 THE WACKENHUT CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. Santa Clara County Public Safety Officers' Association, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

178 F.3d 543

161 L.R.R.M. (BNA) 2449

THE WACKENHUT CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner Santa Clara County Public Safety Officers' Association, Intervenor.

No. 98-1319.

United States Court of Appeals District of Columbia Circuit.

Argued April 5, 1999.

Decided June 8, 1999.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

John W. Powers argued the cause for petitioner/cross-respondent. On the briefs was Brian T. Ashe. Ronald A. Lindsay entered an appearance.

Anne M. Lofaso, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Linda Sher, Associate General Counsel, John D. Burgoyne, Acting Deputy Associate General Counsel, and Peter D. Winkler, Supervisory Attorney. David A. Rosenfeld entered an appearance.

Before: WALD, RANDOLPH and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The Wackenhut Corporation ("Wackenhut"), a company which provides security guard services, argues that a union of 11 guards ¹ employed by Wackenhut was improperly certified because it is impermissibly affiliated with a union that has non-guard members, in violation of the Labor-Management Relations Act, 29 U.S.C. § 159(b)(3) ("the Act"). The National Labor Relations Board ("Board" or "NLRB") rejected this argument. We find that although the challenged unit of guards was undoubtedly reliant on a member of a non-guard union for advice and assistance, the Board's conclusion that the unions were not "indirectly affiliated" within the meaning of the Act is supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Thus, we grant the Board's cross-petition for enforcement and deny Wackenhut's petition for review.

I. BACKGROUND

Wackenhut provides security services for the Santa Clara Valley Transit Authority. In 1998, the Santa Clara County Public Safety Officers' Association ("Officers' Association"), a newly-spawned union of guards, was certified to represent Wackenhut's full- and part-time security officers who service the transit authority. The company refuses to bargain with the Officers' Association on the ground that the union is ineligible for certification because of the help the guards received from the business agent and special advisor for the Northern California Regional Council of Carpenters ("Carpenters"), a union which admits non-guards to its membership.

A. Legal Background

Wackenhut contends that the help the Officers' Association received from the Carpenters' agent violated section 9(b)(3) of the Labor-Management Relations Act, 29 U.S.C. § 159(b)(3), which provides that:

The Board shall decide in each case whether, in order to assure employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, [t]hat the Board shall not ... (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.

29 U.S.C. § 159(b)(3). Congress drafted this provision "to minimize the danger of divided loyalty that arises when a guard is called upon to enforce the rules of his employer against a fellow union member." Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 71 v. NLRB, 553 F.2d 1368, 1373 (D.C.Cir.1977); see also NLRB v. Brinks, Inc. of Fla., 843 F.2d 448, 451 (11th Cir.1988) ("In separating guard and non-guard unions, Congress sought to assure employers of a core of faithful employees that would not be subject to a possible conflict of loyalties during a dispute between an employer and a union representing non-guards.") (citing Wells Fargo Armored Serv. Corp. v. Truck Drivers Local Union No. 807, 270 N.L.R.B. 787, 789, 1984 WL 36553 (1984)).

There is no dispute that the employees at issue here are "guards" within the meaning of the Act, that the Carpenters admit non-guards to membership, and that the two unions are not "directly affiliated" under the Act. The issue is whether the unions are "indirectly affiliated." The Board's position that there is no unlawful "indirect affiliation" between these two unions is rooted in a series of prior Board decisions issued shortly after the Act's passage in 1947. In those cases, the Board determined that Congress' goal of ensuring that guards remain faithful to their employers would not be well-served by a strict interpretation of the Act that forbad fledgling guards' unions from seeking and receiving any form of assistance from established non-guard unions. The Board, interpreting the meaning of "indirect affiliation," ruled that a guards' union does not violate the Act if it receives help in its formative stages from a union of non-guards. This doctrine was based in large part on practical necessity; a new union that is barred from receiving any measure of assistance from a more established one is likely never to get off the ground. Thus, in International Harvester Co., 81 N.L.R.B. 374, 1949 WL 8656 (1949), the Board held that a guards' union, conscientiously engaged in the process of breaking off from the local CIO affiliate in order to comply with the Act, was still capable of formulating its own policies and deciding its own course of action, even though the head of the CIO local represented the guards' union before the employer in a bid for recognition, the election ballots for officers bore the non-guards' union's name, ² and the guards' union continued to use the CIO local's hall rent-free. Similarly, when the unionized guards at a Westinghouse Electric Corporation plant severed ties with the local CIO non-guard affiliate, the Board held that it was permissible for the non-guard affiliate to continue to let the guards use its union hall, and for the non-guards' chief steward to help at the guards' first organizational meeting. See Westinghouse Elec. Corp., 96 N.L.R.B. 1250, 1951 WL 10564 (1951). The Board ruled that indirect affiliation existed in one case, however, when two informal organizational meetings of a guards' union were held rent-free at a local non-guard CIO affiliate's union hall while other labor organizations were required to pay rent; the CIO local's secretary, treasurer and president attended those meetings, assisted in organizing guards and electing officers, and drafted the guards' constitution and bylaws; the CIO local had union cards printed for the guards; and the guards' union collected no dues and had no formal organizational meetings. See Magnavox Co., 97 N.L.R.B. 1111, 1112, 1952 WL 11202 (1952). The Board held that while assistance from a non-guard union during a guards' union's infancy does not necessarily establish indirect affiliation, the "extent and duration" of the aid from the CIO affiliate in Magnavox indicated that the guards' union "ha[d] [n]ever taken any action without the assistance of Local 910 or its officers." Id. at 1113, 1952 WL 11202; see also Mack Manuf. Corp., 107 N.L.R.B. 209, 1953 WL 10904 (1953) (finding indirect affiliation where committeeman of local CIO non-guard affiliate conducted most, if not all, of actual soliciting and organizing, CIO leader witnessed the union cards, and testimony showed that CIO leader stated publicly that he had organized the guards and they would report to him). The upshot is that a nascent guards' union may receive help from a non-guards' union, but to avoid the "indirect affiliation" prohibited by the Act, the extent and duration of the unions' contact must demonstrate that they ultimately became "completely divorced" from each other. Id. The substantive measure of "completely divorced" is whether "the extent and duration of [the guard union's] dependence upon [the non-guard union] indicates a lack of freedom and independence in formulating its own policies and deciding its own course of action." Magnavox, 97 N.L.R.B. at 1113, 1952 WL 11202.

B. Procedural Background

Because the procedural history of this case is relevant to whether the Board properly denied consideration of certain evidence presented by Wackenhut (discussed in the next section), we set it forth in some detail. The Board's regional office conducted a pre-election representation hearing on the affiliation issue on September 3, 1997. On September 30, 1997, the Regional Director issued his Decision and Direction of Election, ruling that the Officers' Association and Carpenters were not unlawfully affiliated with each other. J.A. at 120. Wackenhut requested Board review of the decision, and the Board denied review on November 3, 1997. Id. at 270. An election was held November 5, and with 8 eligible voters voting, the union won unanimously save for one challenged ballot. Based on new evidence, Wackenhut asked the Board on November 10 to reconsider its November 3 order denying review, and two days later filed timely objections to the election; the motion to reconsider and the objections were based solely on the union's alleged affiliation with the Carpenters, id. at 279, 289. Wackenhut supplemented its motion to reconsider with new evidence by a letter to the Board dated December 3. Id. at 301. On March 16, 1998, the Board denied the motion for reconsideration, id. at 305, and the next day, the Regional Director issued a Supplemental Decision and Certification of Representative, ...